AGREEMENT AND PLAN OF MERGER dated as of February 3, 2008 by and among PROGEN PHARMACEUTICALS LIMITED, PROGEN PHARMACEUTICALS, INC., CELLGATE, INC. and SPROUT CAPITAL IX, L.P., as Representative
Exhibit 4(a)(1)
AGREEMENT AND PLAN OF MERGER
dated as of February 3, 2008
by and among
PROGEN PHARMACEUTICALS LIMITED,
PROGEN PHARMACEUTICALS, INC.,
CELLGATE, INC.
and
SPROUT CAPITAL IX, L.P., as Representative
Table of Contents
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Article I THE MERGER |
1 |
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1.01. |
The Merger |
1 |
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1.02. |
Effective Time |
2 |
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1.03. |
Closing |
2 |
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1.04. |
Certificate of Incorporation and Bylaws of the Surviving Corporation |
2 |
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1.05. |
Directors and Officers of the Surviving Corporation |
2 |
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1.06. |
Effects of the Merger |
2 |
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Article II CONVERSION OF SHARES |
2 |
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2.01. |
Conversion of Capital Stock |
2 |
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2.02. |
Exchange of Certificates |
7 |
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Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
9 |
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3.01. |
Power and Authority |
9 |
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3.02. |
No Conflicts; Consents and Approvals |
9 |
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3.03. |
Corporate Status and Authority of the Company |
10 |
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3.04. |
Capital Stock of the Company |
10 |
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3.05. |
Subsidiaries |
10 |
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3.06. |
Financial Statements |
10 |
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3.07. |
Absence of Undisclosed Liabilities |
11 |
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3.08. |
Assets |
12 |
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3.09. |
Real Property |
12 |
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3.10. |
Contracts |
12 |
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3.11. |
Employment |
13 |
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3.12. |
Intellectual Property |
13 |
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3.13. |
Governmental Consents and Approvals |
14 |
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3.14. |
Litigation |
14 |
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3.15. |
Taxes |
15 |
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3.16. |
Regulatory |
17 |
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3.17. |
Insurance |
17 |
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3.18. |
Products |
17 |
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3.19. |
Intercompany Arrangements |
18 |
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3.20. |
Bank and Brokerage Accounts |
18 |
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3.21. |
Other Information |
18 |
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3.22. |
Brokers and Finders |
18 |
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Article IV REPRESENTATIONS AND WARRANTIES OF PARENT |
18 |
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4.01. |
Corporate Status and Authority |
18 |
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4.02. |
No Conflicts |
19 |
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4.03. |
Governmental Consents and Approvals |
19 |
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4.04. |
Litigation |
19 |
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4.05. |
Brokers |
19 |
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4.06. |
Capital Stock of the Company |
19 |
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4.07. |
Public Reports |
20 |
4.08. |
Absence of Material Adverse Effect |
20 |
4.09. |
Financial Capacity |
20 |
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Article V REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB |
20 |
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5.01. |
Corporate Status and Authority |
20 |
5.02. |
No Conflicts |
21 |
5.03. |
Governmental Consents and Approvals |
21 |
5.04. |
Litigation |
21 |
5.05. |
Interim Operations of Sub |
21 |
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Article VI COVENANTS |
21 |
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6.01. |
Covenants of the Company |
21 |
6.02. |
Covenants of Parent |
23 |
6.03. |
Additional Covenants of Parent |
25 |
6.04. |
Covenant of the Representatives |
27 |
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Article VII ADDITIONAL AGREEMENTS |
28 |
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7.01. |
Access to Information; Confidentiality |
28 |
7.02. |
Offer Documents; Other Actions |
28 |
7.03. |
Approval of Stockholders |
28 |
7.04. |
Certain Tax Matters |
28 |
7.05. |
Regulatory and Other Approvals |
30 |
7.06. |
Expenses |
30 |
7.07. |
Notice and Cure |
30 |
7.08. |
Fulfillment of Conditions |
31 |
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Article VIII CONDITIONS |
31 |
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8.01. |
Conditions to Each Party’s Obligation to Effect the Merger |
31 |
8.02. |
Conditions to Obligation of Parent and Sub to Effect the Merger |
32 |
8.03. |
Conditions to Obligation of the Company to Effect the Merger |
33 |
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Article IX TERMINATION, AMENDMENT AND WAIVER |
34 |
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9.01. |
Termination |
34 |
9.02. |
Effect of Termination |
35 |
9.03. |
Amendment |
35 |
9.04. |
Waiver |
35 |
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Article X CERTAIN DEFINITIONS |
36 |
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10.01. |
Definitions |
36 |
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Article XI GENERAL PROVISIONS |
41 |
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11.01. |
Survival of Representations, Warranties, Covenants and Agreements |
41 |
11.02. |
Indemnification |
42 |
11.03. |
Notices |
46 |
11.04. |
Entire Agreement |
47 |
11.05. |
Public Announcements |
47 |
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11.06. |
No Third Party Beneficiary |
47 |
11.07. |
No Assignment; Binding Effect |
47 |
11.08. |
Headings |
47 |
11.09. |
Currency |
47 |
11.10. |
Invalid Provisions |
48 |
11.11. |
Governing Law |
48 |
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This AGREEMENT AND PLAN OF MERGER dated as of February 3, 2008 (this “Agreement”) is made and entered into by and among Progen Pharmaceuticals Limited, a company organized under the laws of Queensland, Australia (“Parent”), Progen Pharmaceuticals, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), CellGate, Inc., a Delaware corporation (the “Company”), and SPROUT CAPITAL IX, L.P., a Delaware limited partnership (the “Representative”), solely with respect to Article II hereof and such other provisions hereof which specifically refer to such Representative.
WHEREAS, Sub was formed so that it would merge with and into the Company; and
ARTICLE I
ARTICLE II
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representing outstanding shares of Sub Common Stock shall, without further action by the holder thereof at the Effective Time represent shares of Surviving Corporation Common Stock.
(b) Cancellation of Treasury Stock and Stock Owned by Parent and Subsidiaries. All shares of common stock of the Company, par value US$0.001 per share (“Company Common Stock”), that are owned by the Company as treasury stock or otherwise and any shares of Company Common Stock owned by Parent, Sub or any other direct or indirect wholly-owned Subsidiary (as hereinafter defined) of Parent shall be canceled and retired and shall cease to exist and no capital stock of the Surviving Corporation or any other consideration shall be delivered in exchange therefor. As used in this Agreement, the term “Subsidiary” means, with respect to any party, any corporation or other organization, whether incorporated or unincorporated, of which more than fifty percent (50%) of either the equity interests in, or the voting control of, such corporation or other organization is, directly or indirectly through Subsidiaries or otherwise, beneficially owned by such party.
(i) If, prior to the Effective Time, Parent shall pay a dividend in (including any dividend or distribution of securities convertible into capital stock), subdivide, combine into a smaller number of shares or issue by reclassification of its shares, any Parent Shares, all references in this Agreement to specified numbers of shares of Parent Shares affected thereby, and all calculations provided for that are based upon numbers of Parent Shares (or trading prices therefor) affected thereby, shall be equitably adjusted to the extent necessary to provide the parties the same economic effect as contemplated by this Agreement prior such adjustment. All such shares of Company Common Stock, Preferred Stock and Senior Preferred Stock, other than Dissenting Shares (as defined in Section 2.01(d)), shall no longer be outstanding and be automatically canceled and retired and shall cease to exist, and each holder of a certificate representing shares of Company Common Stock, Preferred Stock or Senior Preferred Stock, as the case may be, shall cease to have any rights with respect thereto, except the right of such holder to receive
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the applicable number of Parent Shares or cash, as the case may be, upon the surrender of such certificate in accordance with Section 2.02, without interest, and such holder’s right to receive cash or Parent Shares upon the achievement of the Milestones.
(ii) The number of Parent Shares to be paid at the Closing Date (the “Parent Share Consideration”) is based on the assumption that the Net Liabilities were not more than US$1,000,000 on the business day prior to the Closing Date. The Company will cause (A) the accounting records of the Company to be closed as of the close of business on the business day preceding the Closing Date and (B) a balance sheet to be prepared in accordance with GAAP (except that such balance sheet shall not contain the footnotes required by GAAP) as of such time (the “Closing Date Balance Sheet”). The Closing Date Balance Sheet shall reflect all events occurring through the close of business on the business day preceding the Closing Date, and will include the Net Liabilities as at such date. Parent shall have full access to accounting records, trial balances and reports from which the Net Liabilities computation was derived.
(iii) If, as set forth in the Closing Date Balance Sheet, the Net Liabilities were more than US$1,000,000 on the business day prior to the Closing Date, the Parent Share Consideration shall be reduced by the amount of such deficiencies as calculated pursuant to this Section 2.01. If, as set forth in the Closing Date Balance Sheet, the Net Liabilities are less than US$1,0000,000, the Parent Share Consideration shall be increased by the amount of such excess cash and/or the amount of lesser debt as calculated pursuant to this Section 2.01, but in no event in excess of 957,464 Parent Shares. Any remaining difference where such Net Liabilities are less than US$1,000,000 will be paid in cash in U.S. Dollars by the Parent. In making any reduction or increase in the Parent Shares, the value of each Parent Share shall be converted into U.S. Dollars using the Exchange Rate for the purposes of such calculation.
(iv) If, within 45 calendar days after the Company’s delivery of the computation of the Net Liabilities to Parent pursuant to this Section, Parent determines in good faith that the amount of the Net Liabilities so computed is inaccurate, Parent shall give notice to the Representative within such 45 calendar-day period, (A) setting forth Parent’s determination of the amount of the Net Liabilities and (B) specifying in reasonable detail Parent’s basis for its disagreement with the Company’s computation. The failure by Parent so to express its disagreement within such 45 calendar-day period shall constitute acceptance of the amount of the Net Liabilities shown on the Closing Date Balance Sheet for all purposes of this Section. A representative of Parent and the Representative shall attempt in good faith to resolve any such disputes. If the Representative and Parent are unable to resolve any disagreement with respect to these computations within 30 calendar days after receipt by the Representative of notice of such disagreement, the items in dispute shall be referred for determination to a “Big 4” independent accounting firm agreed upon by the Representative and Parent (the “Accountants”) within such 30 calendar-day period. The Accountants shall make a determination as to each of the items in dispute, which determination shall be (W) in writing, (X) furnished to the Representative and Parent as promptly as practicable after the items in dispute have been referred to the Accountants, (Y) made in accordance with GAAP and (Z) conclusive and binding on the Parent. The fees and expenses of the
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Accountants shall be paid by Parent; provided, however, that Parent shall be reimbursed for one-half of such fees and expenses out of the Parent Share Consideration. As soon as reasonably practicable after the final resolution of the computation of the Net Liabilities in accordance with this Section 2.01(c), the Parent shall cause the Exchange Agent to issue to holders of surrendered Certificates, in accordance with Section 2.02, holding statements reflecting the shares registered on the books of the Parent representing that number of additional duly and validly authorized Parent Shares which such holders have the right to receive pursuant to the provisions of this Article II, if any, after adjustment to reflect the final computation of the Net Liabilities and any fees and expenses owing pursuant to this Section 2.01(c) and the Holdback Shares, and shall pay any amount of cash payable pursuant to Section 2.01(c)(iii).
(v) By virtue of the approval of this Agreement by the Company’s stockholders, and without further action of any Company stockholder, each Company stockholder entitled to receive Parent Shares under this Agreement shall be deemed to have irrevocably constituted and appointed Sprout Capital IX, L.P. (and by execution and delivery of this Agreement it hereby accepts such appointment) as agent and attorney-in-fact for and on behalf of such stockholders, with full power of substitution, to act in the name, place and stead of each such stockholder with respect to this Section 2.01(c) in connection with the determination of the Net Liabilities and the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by the Representative under this Article II, including the exercise of the power to: (i) give and receive notices and communications under this Article II; (ii) prepare and deliver to Parent the Closing Date Balance Sheet and computation of Net Liabilities and participate on behalf of the Company’s stockholders in the resolution of any dispute relating thereto, including to act as the representative of the Company’s stockholders to review and authorize all adjustments proposed hereunder and dispute or question the accuracy thereof and to compromise on their behalf with Parent; (iii) deliver or authorize the delivery of any consideration owing pursuant to this Agreement; and (iv) take all actions necessary or appropriate in the good faith judgment of the Representative for the accomplishment of the foregoing. The power of attorney granted in this Section 2.01(c) is coupled with an interest and is irrevocable, and shall survive the death or incapacity of any Company stockholder. The Parent shall be entitled to deal exclusively with the Representative on all such foregoing matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of the Company stockholders by the Representative regarding such matters, and on any other action taken or purported to be taken on behalf of any Company stockholder by the Representatives regarding such matters, as fully binding upon such Company stockholder. No bond shall be required of the Representative, and the Representative shall receive no compensation for services. Notices or communications to or from the Representative shall constitute notice to or from each of the Company’s stockholders.
(vi) In performing the functions specified in this Agreement, the Representative shall not be liable to any Company Stockholder in the absence of gross negligence or willful misconduct on the part of the Representative. The Representative shall not be liable to Parent for any damages resulting from any claim because of such
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Representative’s position as the Representative. Each of the Company’s stockholders shall severally (based on each such stockholder’s pro rata share of the consideration owing pursuant to this Agreement), and not jointly, indemnify and hold harmless the Representative from and against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Representative.
(ii) The Company shall give Parent (x) prompt notice of any written demands for appraisal, withdrawals of demands for appraisal and any other instruments served pursuant to the applicable provisions of the DGCL or CGCL relating to the appraisal process received by the Company and (y) the opportunity to participate in all negotiations and proceedings with respect to demands for appraisal under the DGCL or CGCL, as applicable. The Company will not voluntarily make any payment with respect to any demands for appraisal and will not, except with the prior written consent of Parent, settle or offer to settle any such demands.
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or assurances are reasonably necessary to consummate the Merger or to carry out the purposes and intent of this Agreement at or after the Effective Time, then the Company, Parent, the Surviving Corporation and their respective officers and directors shall execute and deliver all such proper deeds, assignments, instruments and assurances and do all other things reasonably necessary to consummate the Merger and to carry out the purposes and intent of this Agreement.
2.02. Exchange of Certificates.
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Common Stock, Preferred Stock or Senior Preferred Stock is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid and that all applicable United States and Australian federal or state securities laws have been complied with. Until surrendered as contemplated by this Section 2.02(b), each Certificate shall be deemed at any time after the Effective Time for all corporate purposes of Parent, except as limited by paragraph (c) below, to represent ownership of the number of duly and validly authorized Parent Shares into which the number of shares of Company Common Stock, Preferred Stock or Senior Preferred Stock, as the case may be, shown thereon have been converted as contemplated by this Article II. In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, Parent shall, as promptly as practicable following the receipt by Parent of the foregoing documents, issue in exchange for such lost, stolen or destroyed Certificate that portion of the Parent Shares represented by the lost, stolen or destroyed Certificate in exchange therefore which the Company’s stockholder has the right to receive. The Board of Directors of Parent may in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to provide to Parent an indemnity agreement, but not a bond, against any claim that may be made against Parent with respect to the Certificate alleged to have been lost, stolen or destroyed.
(d) No Further Ownership Rights in Company Common Stock or Preferred Stock. All cash paid and Parent Shares issued upon the surrender for exchange of Certificates in accordance with the terms hereof shall be deemed to have been paid or issued, as the case may be, at the Effective Time in full satisfaction of all rights pertaining to the shares of Company Common Stock, Preferred Stock or Senior Preferred Stock, as the case may be, represented thereby. From and after the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock, Preferred Stock or Senior Preferred Stock, as the case may be, which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged as provided in this Section.
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(ii) The total number of Parent Shares issued to each holder of shares of Company Common Stock, Preferred Stock or Senior Preferred Stock exchanged pursuant to the Merger shall be rounded down to the nearest whole number of shares of Parent Shares. No consideration shall be paid to any holder of capital stock of the Company with respect to any fraction of a share of Parent Shares for which such holder would otherwise be entitled.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject to such exceptions as are specifically disclosed in the Disclosure Letter, the Company represents and warrants to Parent as of the date hereof as follows:
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or any Subsidiary is entitled under any provision of any agreement, contract or other instrument binding upon the Company or any Subsidiary or any license, franchise, permit or other similar authorization held by the Company or any Subsidiary, or (iv) the creation or imposition of any Liens other than Liens created by or resulting from the actions of Parent or any of its Affiliates.
(b) Except as set forth in Section 3.02(b) of the Disclosure Letter, no consent, approval, waiver or other action under any contract, agreement, indenture, lease, instrument or other document to which the Company or any Subsidiary is a party or by which any of them is bound is required or necessary for the execution, delivery and performance of this Agreement by the Company or the consummation of the transactions contemplated hereby.
3.04. Capital Stock of the Company. (a) Section 3.04 of the Disclosure Letter sets forth, as of the date hereof, the outstanding Company Common Stock, Preferred Stock, Senior Preferred Stock, Company Stock Options and Company Warrants and the holders of such Company Common Stock, Preferred Stock, Senior Preferred Stock, Company Stock Options and Company Warrants. All outstanding shares of Company Common Stock, Preferred Stock and Senior Preferred Stock have been duly authorized and validly issued and are fully paid and non-assessable. Except as set forth in this Section, there are no outstanding (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company, or (iii) options or other rights to acquire from the Company, and there is no obligation of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company (the items in clauses (i), (ii) and (iii) being referred to collectively as “Company Securities”). Except as set forth in this Section or in Section 3.04 of the Disclosure Letter, there are, and at or prior to Closing there will be, no outstanding obligations of the Company or any Subsidiary to issue or deliver or to repurchase, redeem or otherwise acquire any Company Securities.
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Statements were prepared on a consistent basis throughout the periods presented in the Financial Statements and present fairly in all material respects the financial condition and results of operations of the Company on a consolidated basis as of the dates and for the periods indicated therein and have been prepared in accordance with GAAP, except, in the case of the unaudited Financial Statements, for the absence of footnotes and normal year-end adjustments.
(a) Except as set forth on Schedule 3.07(b) of the Disclosure Letter or as contemplated by this Agreement, since the 2007 Balance Sheet, the Company and has conducted their businesses in the ordinary course consistent with past practices and there has not been:
(i) any Material Adverse Effect or any event, occurrence, development or state of circumstances or facts which could reasonably be expected to result in a Material Adverse Effect;
(ii) any declaration, setting aside or payment or any dividend or other distribution with respect to any Company Security, or any repurchase, redemption or other acquisition by the Company of any outstanding Company Security;
(iii) any amendment of any material term of any outstanding security of the Company;
(iv) any incurrence, assumption or guarantee by the Company of any indebtedness for borrowed money;
(v) any creation or assumption by the Company of any Lien on any material asset other than in the ordinary course of business consistent with past practices;
(vi) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the Company which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;
(vii) any transaction or commitment made, or any contract or agreement entered into, by the Company relating to its assets or business (including the acquisition or disposition of any assets) or any relinquishment by the Company of any contract or other right, in either case, material to the Company taken as a whole, other than transactions and commitments in the ordinary course of business consistent with past practices and those contemplated by this Agreement;
(viii) any change in any method of accounting or accounting practice by the Company;
(ix) any change in the Company’s fiscal year; or
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(x) any material Tax election made by the Company.
(b) Except as set forth in Section 3.08 of the Disclosure Letter, the Company owns or has the right to use all of the properties and assets used by the Company in its business.
(b) To the knowledge of the Company, there exist no pending or threatened condemnation proceedings of or relating to the Leased Real Property or any part thereof. There exist no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or any rights or interests therein. Other than the Company, there are no parties in possession having any rights to use, occupy or possess any of the Owned Real Property or any portion thereof or, to the knowledge of the Company, any Leased Real Property or any portion thereof. Neither the Company is obligated to purchase any real property.
(c) Each lease (including any option to purchase contained therein) pursuant to which the Company leases any Leased Real Property listed in Section 3.09 of the Disclosure Letter (the “Leases”) is in full force and effect and, to the knowledge of the Company, is enforceable against the landlord which is party thereto in accordance with its terms, except to the extent that any failure to be so enforceable could not reasonably be expected to have a Material Adverse Effect. There exists no default or event of default on the part of the Company under any Leases. The Company has furnished or made available to Parent complete and correct copies of all Leases including all amendments thereto. The Company has not received any written notice of any default under any lease by which the Company leases the Leased Real Property nor any other written termination notice with respect thereto.
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following the Closing: (a) joint venture and limited partnership or other similar agreements, (b) mortgages, indentures, loan or credit agreements, security agreements and other agreements and instruments relating to the borrowing of money or extension of credit, (c) distribution and marketing agreements, any license agreement, franchise agreement or agreement in respect of similar rights granted to or held by the Company, other than any nonexclusive licenses that are available to the public generally, (d) any contract or other document that substantially limits the freedom of the Company to compete in any line of business or with any Person or in any area or which would so limit the freedom of the Company after the Closing Date, (e) research agreements, and (f) other agreements, contracts and commitments which are not cancelable by the Company on notice of 60 days or less and which require payment by the Company after the date hereof of more than US$25,000 (collectively, the “Material Agreements”). The Company has furnished or made available to the Parent copies of all of the contracts listed in Section 3.10 of the Disclosure Letter. The Company is not, nor to the knowledge of the Company, any other Person, is not in default under any of the Material Contracts to the extent that such default could reasonably be expected to have a Material Adverse Effect.
(a) Employment Agreements. Section 3.11(a) of the Disclosure Letter lists all written agreements, contracts and commitments of the following types to which the Company is a party as of the Closing Date: (i) employment agreements (including severance and retention agreements) and (ii) collective bargaining agreements.
(b) Labor Disputes, Compliance with Laws, etc. Except as provided in Section 3.11(b) of the Disclosure Letter, there is not, nor, to the knowledge of the Company, is there threatened, any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime or other similar labor activity with respect to any employees of the Company. The Company is in compliance in all material respects with all applicable laws pertaining to the employment or termination of employment of its employees.
(c) Employee Benefit Plans. The Company does not have any Employee Benefit Plan, other than those listed in Section 3.11(c) of the Disclosure Schedule.
(d) Retention of Employees and Consultants. Except as set forth on Section 3.11(d) of the Disclosure Letter, none of the employees or consultants of the Company has indicated to the Company that he intends to resign or retire or discontinue (by termination, non-renewal or otherwise) his relationship with the Company as a result of the transactions contemplated by this Agreement or otherwise within two years after the Closing Date. No employee has a valid claim for payment of accrued salary or benefits which was required to be paid to such employee prior to the date hereof that will not be paid in full prior to the Closing Date.
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material licenses, sublicenses and other agreements as to which the Company or any of its Affiliates is a party and pursuant to which any Person is authorized to use such Intellectual Property Right, including the identity of all parties thereto, a description of the nature and subject matter thereof, the applicable royalty and the term thereof.
(b) (i) The Company has not been sued or charged in writing with or been a defendant in any claim, suit, action or proceeding relating to its business that has not been finally terminated prior to the date hereof and that involves a claim of infringement of any patents, trademarks, service marks or copyrights, and (ii) the Company has no knowledge of any other claim or infringement by the Company, and no knowledge of any continuing infringement by any other Person of any Intellectual Property Rights. To the knowledge of the Company, the Company has not done any act that would invalidate any patents of the Company. To the knowledge of the Company, there is no prior art that would invalidate the issued patents or any part thereof. No Intellectual Property Right is subject to any outstanding order, judgment, decree, stipulation or agreement restricting the use thereof by the Company or restricting the licensing thereof by the Company to any Person. The Company has not entered into any agreement to indemnify any other Person against any charge of infringement of any patent, trademark, service xxxx or copyright.
(c) To the knowledge of the Company, none of the material processes and formulae, research and development results and other know-how of the Company, the value of which to the Company is contingent upon the maintenance of the confidentiality thereof, has been disclosed by the Company to any Person other than employees, representatives and agents of the Company bound by enforceable confidentiality undertakings. The Company owns or has the right to use the material Intellectual Property Rights and, with respect to Intellectual Property it purports to own, the Company has done all acts necessary to secure title to the Intellectual Property Rights in all relevant jurisdictions. To the knowledge of the Company, none of the Intellectual Property Rights infringes the rights of any third party.
(b) Except as set forth in Section 3.13(b) of the Disclosure Letter, all Governmental Approvals and other Consents from Governmental Authorities that are necessary for, or otherwise material to, the conduct of the business of the Company substantially in the manner currently conducted after giving effect to the transactions contemplated in this Agreement have been duly obtained and are held by the Company. The Company is in compliance with all Governmental Approvals and other Consents held by it, except for such failures that could not reasonably be expected to have a Material Adverse Effect.
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agency, official or authority, which (i) could reasonably be expected to have a Material Adverse Effect, or (ii) question the validity of this Agreement or any action taken or to be taken by the Company in connection herewith or which in any manner seeks to prevent, enjoin, alter or materially delay the transactions contemplated hereby, nor to the knowledge of the Company is there any basis therefor.
(b) The Company has filed all Tax Returns that each corporation was required to file. All such Tax Returns of the Company were correct and complete in all material respects when filed and were prepared in substantial compliance with all applicable laws and regulations. All Taxes due and payable by the Company (whether or not shown on any Tax Return) have been paid. Except as set forth in Section 3.15 of the Disclosure Letter, the Company is not currently the beneficiary of any extension of time within which to file any Tax Return. No claim has ever been made in writing by an authority in a jurisdiction where the Company does not file Tax Returns that such non-filing corporation is or may be subject to taxation by that jurisdiction. There are no Liens for Taxes on any of the assets of the Company other than any Liens for Taxes not yet due and payable.
(c) The Company has withheld and paid all Taxes required to have been withheld and paid by such entity in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.
(d) The Company has not been informed in writing that any authority may assess any additional Taxes for any period for which Tax Returns have been filed. Except as disclosed in Section 3.15 of the Disclosure Letter, there is no dispute or claim concerning any Tax liability of the Company claimed or raised by any authority in writing. Section 3.15 of the Disclosure Letter annexed hereto lists all federal, state, local, and foreign income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2002, and indicates those Tax Returns that have been audited and those Tax Returns that currently are the subject of an audit. The Company has delivered to Parent correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by the Company for the taxable periods ending on or after December 31, 2002.
(e) The Company has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
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(f) The Company has not made any payments, is obligated to make any payments, or is a party to any agreement, contract, arrangement or plan that has resulted or could result, separately or in the aggregate, in the payment of any amount that (i) would constitute an “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state, local or foreign Tax law) and (ii) will not be fully deductible as a result of Section 162(m) of the Code (or any corresponding provision of state, local or foreign Tax law), or (iii) would give rise to any obligation to indemnify any Person for excise tax payable pursuant to Section 4999 of the Code.
(g) The Company is not a party to or bound by any Tax allocation or sharing agreement. The Company (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company) or (ii) has any liability for the Taxes of any person (other than the Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise. An affiliated group, for this purpose, means any affiliated group within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of state, local or foreign law.
(h) The Company is not, nor during the period specified in Section 897(c)(1)(A)(ii) of the Code has been, a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code.
(i) The Company has not engaged in any listed
transaction within the meaning of Treasury Regulation Section
1.6011-4.
(j) The unpaid Taxes of the Company (i) do not exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the 2007 Balance Sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing their Tax Returns. Since the date of the 2007 Balance Sheet, the Company has not incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past practice.
(k) The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; (iii) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law); (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
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(l) The Company has not distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or Sections 361 of the Code.
(b) The Company is in substantial compliance with the laws applicable to the development, manufacture, labeling, testing, subjecting to clinical evaluation and inspection of the Specified Products and with all applicable regulations, policies and procedures promulgated by the FDA with respect thereto. The Company has received no written notice that any recalls, field notifications or seizures have been ordered or, to the knowledge of the Company, threatened by any governmental body with respect to any of the Specified Products. The Company has not received a warning letter or other similar written notice from the FDA regarding the Specified Products or the manufacturing facilities used to manufacture the Specified Products. The Company has not received any written notice that the FDA or any other authority has commenced or overtly threatened to initiate any action to enjoin production or clinical evaluation of any Specified Products. To the knowledge of the Company, no officer, employee or agent of the Company has made an untrue statement of a material fact or fraudulent statement to the FDA or any other authority, or committed an act, made a statement or failed to make a statement that, at the time such disclosure was made, could reasonably be expected to provide a basis for the FDA or any other authority to invoke with respect to the Company its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery and Illegal Gratuities”, set forth in 56 Fed. Reg. 46191 (September 10, 1991) or any similar policy.
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of such occurrence in compliance in all material respects with all applicable federal, state, local and foreign laws and regulations or (ii) is not or was not at the time of such occurrence fit for the ordinary purposes for which it is or was intended to be used and does not or did not conform in all material respects to any promises or affirmations of fact made on the container or label for such product or in connection with its sale. There has not occurred any event that may give rise to liability on the part of the Company based on a claim that there is or was at the time of such occurrence any design defect with respect to any of such products or that any of such products fails or failed to contain adequate warnings, presented in a reasonably prominent manner, in accordance with applicable laws and current industry practice with respect to its contents and use.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company and the Representatives as of the date hereof as follows:
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(b) The execution, delivery and performance by Parent of this Agreement has been duly authorized by its board of directors which, except as described in Section 7.03, constitutes all necessary corporate action on the part of Parent for such authorization. Parent has duly executed and delivered this Agreement and may perform the obligations under this Agreement. This Agreement constitutes Parent’s valid and binding obligation enforceable against it in accordance with the terms thereof, except as limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws of general applicability relating to or affecting the enforcement of creditor’s rights generally or by general equitable principles.
(b) Except as set forth in Section 4.02(b) of the Parent Disclosure Letter, no consent, approval, waiver or other action under any contract, agreement, indenture, lease, instrument or other document to which the Parent or any Subsidiary is a party or by which any of them is bound is required or necessary for the execution, delivery and performance of this Agreement by the Parent or the consummation of the transactions contemplated hereby, including the issuance of the Parent Shares hereunder.
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and outstanding, (ii) no Parent Shares were held by the Parent in its treasury, (iii) 2,970,672 unissued Parent Shares were reserved for issuance pursuant to outstanding listed options over fully paid ordinary shares, (iv) 2,829,250 unissued Parent Shares were reserved for issuance pursuant to outstanding unlisted options over fully paid ordinary shares pursuant to Parent’s Employee Share Option Plan and (v) shares payable under settlement arrangements with Medigen Biotechnology Corporation. All outstanding Parent Shares have been duly authorized and validly issued and are fully paid and non-assessable. Except as set forth in this Section, there are no outstanding (i) shares of capital stock or voting securities of the Parent, (ii) securities of the Parent (including debt securities) convertible into or exchangeable for shares of capital stock or voting securities of the Parent, or (iii) options or other rights to acquire from the Parent, and there is no obligation of the Parent to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Parent.
4.07. Public Reports. Parent has filed all required reports, schedules, forms, statements and other documents with the Australian Securities Exchange and the United States Securities and Exchange Commission as part of its continuous disclosure obligations under the Australian Securities Exchange listing rules and the Corporations Xxx 0000 and the Securities Exchange Act of 1934, as amended, and each of the rules and regulations promulgated thereunder, and such reports (including the financial statements contained therein) that were filed with respect to the Parent’s fiscal year end June 30, 2007 and any period thereafter (the “Parent ASE Filings”), were accurate in all material respects when first filed or made available to the public.
4.08. Absence of Material Adverse Effect. Since December 31, 2007, there has not occurred any Parent Material Adverse Effect.
4.09. Financial Capacity. Parent has, or has available to it, sufficient funds to consummate the transactions contemplated by this Agreement
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Subject to such exceptions as are specifically disclosed in the Parent Disclosure Letter, Parent and Sub jointly and severally represent and warrant to the Company and the Representatives as of the date hereof as follows:
(b) The execution, delivery and performance by Sub of this Agreement has been duly authorized by its board of directors which, except as described in Section 7.03, constitutes all necessary corporate action on the part of Sub for such authorization. Sub has duly executed and delivered this Agreement. This Agreement constitutes Sub’s valid and binding obligation enforceable against it in accordance with the terms thereof, except as limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws of general
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applicability relating to or affecting the enforcement of creditor’s rights generally or by general equitable principles.
ARTICLE VI
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business dealings with them; provided, however, that no action by the Company covered by any other provision of this Section 6.01 shall be deemed a breach of this Section 6.01(a) unless such action would also constitute a breach of one or more of such other provisions.
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(a) Ordinary Course. Parent and its Subsidiaries shall carry on their respective businesses in the usual, regular and ordinary course in all material respects, in substantially the same manner as heretofore conducted, and shall use all reasonable efforts to preserve intact their present lines of business and keep available the services of their current officers and employees
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and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them; provided, however, that no action by Parent or its Subsidiaries covered by any other provision of this Section 6.02 shall be deemed a breach of this Section 6.02(a) unless such action would also constitute a breach of one or more of such other provisions.
(c) Issuance of Securities. Parent shall not, nor shall it permit any of its Subsidiaries to, issue, deliver, sell, pledge or otherwise encumber, any shares of its capital stock or authorize or propose the issuance, delivery, sale, pledge or encumbrance (except for Permitted Liens), of, any shares of its capital stock of any class, or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such shares of capital stock, or enter into any agreement with respect to any of the foregoing, other than (i) the issuance of Parent Shares upon the exercise of stock options outstanding on the date hereof in accordance with their present terms, (ii) issuances by a wholly owned Subsidiary of capital stock to such Subsidiary’s parent, (iii) the issuance of Parent Shares in connection with the Merger or (iv) the issuance of Parent Shares to Medigen Biotechnology Corporation under the terms of an agreement entered into on January 16, 2007, which terms have been disclosed to the Company.
(e) Acquisitions and Divestitures. Parent shall not, and shall not permit any of its Subsidiaries to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets (other than the acquisition of assets used in the operations of the business of Parent and its Subsidiaries in the ordinary course); provided, however, that the foregoing shall not prohibit (x) internal reorganizations or consolidations involving existing wholly owned Subsidiaries of Parent or (y) the creation of new Subsidiaries of Parent organized to conduct or continue activities otherwise permitted by this Agreement and that in the case of clause (x) and (y) would not otherwise be prohibited by or result in a breach of any other provision of this Section 6.02. Other than (i) internal reorganizations or consolidations involving existing wholly owned Subsidiaries of Parent and (ii) as may be required by or in conformance with law or regulation in order to permit or facilitate the consummation of the transactions contemplated hereby, Parent shall not, and shall not permit
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any wholly owned Subsidiary of Parent to, sell, lease, encumber or otherwise dispose of, or agree to sell, lease, encumber or otherwise dispose of, any of its assets (including capital stock of wholly owned Subsidiaries of Parent) which are material, individually or in the aggregate, to Parent other than sales of inventory in the ordinary course of business.
(i) Agreements or Commitments. Except as required by Section 6.02(a), Parent shall not, and shall not permit any of its Subsidiaries to, authorize any of, or commit or agree to take any of, the foregoing actions.
6.03. Additional Covenants of Parent. Parent additionally covenants and agrees as follows:
(a) First Milestone Consideration. Not later than 45 days following achievement of the First Milestone, the Parent will pay an additional US$5,000,000 to the former holders of Company Common Stock, Preferred Stock and Senior Preferred Stock in accordance with Section 2.01(c), in Parent Shares (to the extent such Parent Shares may be issued by the Parent without shareholder approval) and cash (to the extent such Parent Shares cannot be issued by the Parent without shareholder approval); provided, that, for the avoidance of doubt, Parent will issue the maximum number of Parent Shares as can be issued by Parent without shareholder approval and will pay the remainder of the consideration due pursuant to this Section 6.03(a) in cash. If the Parent pays the First Milestone in whole or in part in Parent Shares, the number of Parent Shares to be issued and delivered to Representatives shall be determined by multiplying US$5,000,000 (or such portion thereof as is to be paid in Parent Shares) by the Exchange Rate and dividing the product by the Thirty-Day Average Stock Price. In the event of payment in Parent Shares, Parent shall make available to the Representatives holding statements issued by the Parent’s share transfer agent representing the number of duly and validly authorized whole Parent Shares issuable in connection with the First Milestone to be held for the benefit of the former holders of Company Common Stock, Preferred Stock and Senior Preferred Stock to be distributed under Section 2.01(c). Payment in cash will be made to such account of the
25
Representatives as shall be provided to the Parent in writing for distribution to the former holders of Company Common Stock, Preferred Stock and Senior Preferred Stock pursuant to Section 2.01(c), and the Representatives shall cause the former holders of Company Common Stock, Preferred Stock and Senior Preferred Stock to be paid in accordance therewith within a commercially reasonable period of time, which, in any event, shall not exceed 20 business days.
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in cash will be made to such account of the Representatives as shall be provided to the Parent in writing for distribution to the former holders of Company Common Stock, Preferred Stock and Senior Preferred Stock pursuant to Section 2.01(c), and the Representatives shall cause the former holders of Company Common Stock, Preferred Stock and Senior Preferred Stock to be paid in accordance therewith within a commercially reasonable period of time, which, in any event, shall not exceed 20 business days.
(f) Efforts to Achieve Milestones. Parent shall use its reasonable commercial efforts to achieve the Milestones within a commercially reasonable period of time.
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ARTICLE VII
(b) Each of the parties hereto hereby agrees that the information obtained in any investigation pursuant to this Section or pursuant to the negotiation and execution of this Agreement or the effectuation of the transactions contemplated hereby, shall be governed by the terms of the Mutual Non-Disclosure Agreement effective as of August 21, 2007 (the “Non-Disclosure Agreement”) between the Company and Parent.
(a) Tax Returns. Parent shall prepare or cause to be prepared and file or cause to be filed, in a manner consistent with the Company’s past practice (unless otherwise required by
28
law), all Tax Returns for the Company (i) for all Tax periods ending on or prior to the Closing Date which are filed after the Closing Date and (ii) for all Tax periods beginning before and ending after the Closing Date. Parent shall permit the Representatives to review and comment on each such Tax Return described in the preceding sentence at least 15 days prior to filing.
(b) Cooperation on Tax Matters. The parties hereto and the Surviving Corporation shall cooperate fully, as and to the extent reasonably requested by another party, in connection with the filing of Tax Returns pursuant to this Section and any audit, litigation or other proceeding with respect to Taxes. Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The parties hereto and the Surviving Corporation agree (A) to retain all books and records with respect to Tax matters pertinent to the Company relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Parent, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any taxing authority, (B) to give the other party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other party so requests, any party hereto or the Surviving Corporation, as the case may be, shall allow the other party to take possession of such books and records, and (C) upon request, to use their best efforts to obtain any certificate or other document from any governmental authority or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed (including, but not limited to, with respect to the transactions contemplated hereby).
(c) Certain Taxes All transfer, documentary, sales, use, stamp, registration and other substantially similar Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (collectively, “Transfer Taxes”), shall be paid by the Company when due, and such parties will, at their own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes and, if required by applicable law, the Surviving Corporation and the Parent will, and will cause their affiliates to, join in the execution of any such Tax Returns and other documentation. The Representatives shall provide the Surviving Corporation and the Parent with evidence satisfactory to the Surviving Corporation and the Parent that such Transfer Taxes have been paid by the Company. The Representatives shall use their commercially reasonable best efforts to provide Parent at Closing with a clearance certificate or similar document(s) which may be required by any state taxing authority to relieve the Parent of any obligation to withhold any portion of the payments made pursuant to this Agreement.
(d) Tax Refunds. Any Tax refunds that are received by Parent, the Surviving Corporation or any of their Subsidiaries, and any amounts credited against Tax to which Parent, the Surviving Corporation or any of their Subsidiaries become entitled, that relate to Tax periods or portions thereof ending on or before the Closing Date shall be for the account of the Company stockholders, and the Parent shall pay over to the Representatives any such refund or the amount of any such credit within thirty (30) days after receipt thereto. In addition, to the extent that a claim for refund or a proceeding results in a payment or credit against Tax by a taxing authority or other Government Authority to the Parent, Surviving Corporation or any of their Subsidiaries
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of any amount that is both (i) accrued on the Closing Date Balance Sheet and (ii) included in the calculation of Net Liabilities, Parent shall pay such amount to the Representatives within thirty (30) days after receipt thereto.
(e) Tax Claims. If, subsequent to the Closing, any of Parent, the Surviving Corporation or the Representative receives notice of a claim by any Governmental Authority, that, if successful, might result in an indemnity payment hereunder (a “Tax Claim”), then within fifteen (15) days after receipt of such notice, the party receiving such notice shall give written notice of such Tax Claim to the other parties. The Parent shall have the right to control the conduct and resolution of any such Tax Claim; provided, however, that if the resolution of any such Tax Claim (or any portion thereof) may affect the Taxes of the Company for a Tax period ending on or prior to the Closing Date or a Tax period beginning before and ending after the Closing Date, then the Representative and Parent shall jointly control the conduct and resolution of such Tax Claim (or portion thereof). If the Representative elects not to participate in the conduct and resolution of any such Tax Claim, the Representative shall notify Parent in writing and Parent shall have the right to control the conduct and resolution of such Tax Claim; provided, however, that Parent shall keep the Representative informed of all developments on a timely basis and Parent shall not resolve such Tax Claim in a manner that could reasonably be expected to have an adverse impact on the Indemnifying Party’s indemnification obligations under this Agreement without the written consent of the Representative, which shall not be unreasonably withheld. Each party shall bear its own costs incurred in participating in any proceeding relating to any Tax Claim.
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other promptly in writing of, and will use all commercially reasonable efforts to cure, before the Closing, any violation or breach of any representation, warranty, covenant or agreement made by Parent or the Company, as the case may be, in this Agreement, whether occurring or arising prior to, on or after the date of this Agreement. No notice given pursuant to this Section shall have any effect on the representations, warranties, covenants or agreements contained in this Agreement for purposes of determining satisfaction of any condition contained herein. Notwithstanding the foregoing provisions, the delivery of any notice pursuant to this paragraph shall not constitute an acknowledgment or admission of a breach of this Agreement.
ARTICLE VIII
(c) No Injunctions or Restraints. No court of competent jurisdiction or other competent Governmental Authority shall have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal or otherwise restricting, preventing or prohibiting consummation of the Merger or the other transactions contemplated by this Agreement.
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its Subsidiaries, taken as a whole, or on the ability of Parent and the Company to consummate the transactions contemplated hereby shall have been obtained.
(d) Orders and Laws. There shall not have been issued, enacted, promulgated or deemed applicable to Parent, the Surviving Corporation, any of their respective Subsidiaries or the transactions contemplated by this Agreement any order or law of any Governmental Authority which is then in effect and which could be reasonably expected to result in a material diminution of the benefits of the Merger to Parent.
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(g) Material Adverse Effect. Since the date of this Agreement, no Material Adverse Effect shall have occurred that has not been cured.
(h) Silicon Valley Bank Loan. Silicon Valley Bank shall have delivered to Parent a letter providing that Silicon Valley Bank will release all claims against the Company upon the payment of all principal and interest outstanding and payable by the Company to Silicon Valley Bank under those certain Loan and Security Agreements dated as of December 22, 2005 and November 20, 2007, respectively, which shall be paid on or soon after the Closing.
8.03. Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment, at or prior to the Closing, of each of the following additional conditions (all or any of which may be waived in whole or in part by the Company in its sole discretion):
(a) Representations and Warranties. Each of the representations and warranties made by Parent and Sub in this Agreement to the extent qualified by materiality shall be true and correct and each of the representations and warranties to the extent not so qualified by materiality shall be true and correct in all material respects, in each case, as of the Closing Date as though made on and as of the Closing Date or, in the case of representations and warranties made as of a specified date earlier than the Closing Date, on and as of such earlier date, and Parent and Sub shall each have delivered to the Company a certificate, dated the Closing Date and executed on behalf of Parent by its Company Secretary, Managing Director or any executive officer and on behalf of Sub by a director to such effect.
(b) Performance of Obligations. Parent and Sub shall have performed and complied with, in all material respects, each agreement, covenant and obligation required by this Agreement to be so performed or complied with by Parent or Sub at or prior to the Closing, and Parent and Sub shall each have delivered to the Company a certificate, dated the Closing Date and executed on behalf of Parent by its Company Secretary, Managing Director or any executive officer and on behalf of Sub by a director, to such effect.
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(c) Opinion of Counsel. The Company shall have received the opinion of Xxxxxxxxx Traurig, LLP, U.S. counsel to Parent and Sub, dated the Closing Date, in a form reasonably acceptable to the Company.
(d) Proceedings. All proceedings to be taken on the part of Parent and Sub in connection with the transactions contemplated by this Agreement and all documents incident thereto shall be reasonably satisfactory in form and substance to the Company, and the Company shall have received copies of all such documents and other evidences as the Company may reasonably request in order to establish the consummation of such transactions and the taking of all proceedings in connection therewith.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
(a) by mutual written agreement of Parent and the Company duly authorized by action taken by or on behalf of their respective Boards of Directors; or
(b) by either Parent or the Company upon notification to the non-terminating party by the terminating party:
(i) at any time after March 31, 2008 if the Merger shall not have been consummated on or prior to such date and such failure to consummate the Merger is not caused by a breach of this Agreement by the terminating party;
(ii) if the Company shall not have obtained approval of the Merger by its stockholders by reason of the failure to obtain the requisite vote of such stockholders;
(iii) if any Governmental Authority, the taking of action by which is a condition to the obligations of either the Company or Parent to consummate the transactions contemplated hereby, shall have determined not to take such action and all appeals of such determination shall have been taken and have been unsuccessful;
(iv) if, on or prior to March 31, 2008, there has been a material breach of any representation, warranty, covenant or agreement on the part of the non-terminating party set forth in this Agreement which breach has not been cured within 15 business days following receipt by the non-terminating party of notice of such breach from the terminating party or assurance of such cure reasonably satisfactory to the terminating party shall not have been given by or on behalf of the non-terminating party within such five business day period;
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(v) if any court of competent jurisdiction or other competent Governmental Authority shall have issued an order making illegal or otherwise restricting, preventing or prohibiting the Merger and such order shall have become final and nonappealable; or
(vi) if there shall have occurred (A) any general suspension of, limitation on prices for or trading in securities of Parent on any recognized stock exchange where the shares of the Parent are listed (other than as a result of the triggering of “circuit-breakers” or other similar stock exchange protection devices), (B) a declaration of a banking moratorium by any federal or state Governmental Authority or any suspension of payments in respect of banks in the United States or Australia, and (C) any limitation (whether or not mandatory) by any federal or state Governmental Authority on the extension of credit by banks or other lending institutions.
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ARTICLE X
“Accountants” has the meaning specified in Section 2.01(c).
“Affiliates” means, with respect to any Person, any Person directly or indirectly controlling, controlled by or under common control with such other Person.
“Agreement” means this Agreement and Plan of Merger.
“Blue Sky Laws” means any applicable state securities or “blue sky” laws.
“Certificates” has the meaning specified in Section 2.02(b).
“Certificate of Merger” has the meaning specified in Section 1.02.
“CGCL” means the California General Corporation Law.
“Closing” has the meaning specified in Section 1.03.
“Closing Date” has the meaning specified in Section 1.03.
“Closing Date Balance Sheet” has the meaning specified in Section 2.01(c).
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” has the meaning specified in the first paragraph of this Agreement.
“Company Common Stock” has the meaning specified in Section 2.01(b).
“Company Securities” has the meaning specified in Section 3.04.
“Company Stock Options” has the meaning specified in Section 2.01(e).
“Company Warrants” has the meaning specified in Section 2.01(e).
“Consents” means any consent, approval, authorization, waiver, permit, grant, franchise, concession, agreement, license, certificate, exemption, order, registration, declaration, filing, report or notice.
“Constituent Corporations” has the meaning specified in Section 1.01.
“Deferred Payment” has the meaning specified in Section 11.02(f).
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“DGCL” has the meaning specified in the fourth Whereas clause of this Agreement.
“Disclosure Letter” means the disclosure letter delivered by the Company prior to or concurrently with the execution and delivery of this Agreement.
“Dissenting Share” has the meaning specified in Section 2.01(d).
“Effective Time” has the meaning specified in Section 1.02.
“Employee Benefit Plan” means each profit sharing, pension, retirement, bonus, incentive compensation, stock option, deferred compensation or other written material employee benefit plan, agreement, contract or commitment for the benefit of the present and former employees of the Company or any Subsidiary and which is maintained or established by the Company or any Subsidiary or to which either the Company or any Subsidiary contributes or is required to contribute or by which either the Company or any Subsidiary is legally bound.
“Entity” means any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization or entity.
“Exchange Agent” has the meaning specified in Section 2.02(a).
“Exchange Fund” has the meaning specified in Section 2.02(a).
“Exchange Rate” means for any date of determination hereunder the Australian Dollar to U.S. Dollar exchange rate published by the Reserve Bank of Australia on such date.
“FDA” means the United States Food and Drug Administration.
“Financial Statements” has the meaning specified in Section 3.06.
“First Milestone” means the initiation of any Phase III clinical trial relating to or involving the Specified Technology (initiation being the date upon which the first human subject is enrolled into the clinical trial).
“Fourth Milestone” means the date of submission to the FDA by the Parent or any Affiliate of the first IND in respect of a compound comprised in the Specified Technology developed in the pre-clinical program (vascular hyperplasia, LSD1 inhibitor, HDAC inhibitors, Xxxxxxxx, anti-infectives).
“GAAP” means generally accepted accounting principles of the United States.
“Governmental Approval” means any permit, license, certificate, franchise, permission, clearance, registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Authority.
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“Governmental Authority” means any nation or government, any state or other political subdivision thereof; any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including, without limitation, any government authority, agency, department, board, commission or instrumentality; any court, tribunal or arbitrator; and any self-regulatory organization.
“Holdback Shares” has the meaning specified in Section 2.01(f).
“IND” means an Investigation New Drug Application for the Company’s product candidate to the FDA made by the Parent or any Affiliate in respect of the Specified Technology that materially complies with the requirements of the FDA, including the requirements under 21 CFR 312.
“Indemnified Party” has the meaning specified in Section 11.02(e).
“Indemnifying Party” has the meaning specified in Section 11.02(e).
“Intellectual Property Right” means any trademark, service xxxx, registration thereof or application for registration thereof, trade name, invention, patent, patent application, trade secret, know-how, copyright, copyright registration, application for copyright registration, or any other similar type of proprietary intellectual property right, whether or not registered, in each case which is owned or licensed and used or held for use by the Company or any Subsidiary (excluding any non-exclusive licenses that are available to the public generally).
“Jurisdiction of Organization” means (i) Delaware, with respect to the Company and Sub, and (ii) Australia, with respect to Parent.
“knowledge” means the knowledge of a particular fact, circumstance, event or other matter in question of the officers of an Entity. Any such officers of an Entity will be deemed to have knowledge of a particular fact, circumstance, event or other matter if (i) such officer has actual knowledge of the fact, circumstance or event or (ii) knowledge of such fact, circumstance or event would be obtained by reasonable inquiry under the circumstances.
“Leased Real Property” has the meaning specified in Section 3.09(a).
“Leases” has the meaning specified in Section 3.09(c).
“Lien” means liens, claims, mortgages, encumbrances, pledges, security interests, equities and charges of any kind.
“Losses” has the meaning specified in Section 11.02(a).
“Material Agreements” has the meaning specified in Section 3.10.
“Material Adverse Effect” means a material adverse effect on the business, operations, prospects or financial condition of the business of the Company taken as a whole; provided, however, that none of the following (individually or in combination) shall be deemed to constitute, or shall be taken into account in determining whether there has been, a Material
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Adverse Effect: (a) any change or effect relating to the United States or international economy in general or changes or developments in the Company’s industry generally; or (b) any adverse effect resulting directly or indirectly from the announcement, execution or delivery of this Agreement or the pendency or consummation of the Merger.
“Merger” has the meaning specified in the fourth Whereas clause of this Agreement.
“Milestones” means the fulfillment of any one of the First Milestone, the Second Milestone, the Third Milestone or the Fourth Milestone, or any or all of such Milestones.
“Most Recent Parent ASE Filings” has the meaning specified in Section 5.06.
“NDA” means a New Drug Application for the Company’s product candidate that is in substantial compliance with the FDA’s new drug application guidance as then in effect.
“Net Liabilities” means the sum of cash and cash equivalents held by the Company less liabilities of the Company (excluding deferred revenue, deferred rent) and unrecorded liabilities set forth in Section 3.07 of the Disclosure Letter.
“Non-Disclosure Agreement” has the meaning specified in Section 7.01(b).
“Offer Documents” means the Information Statement/Private Offering Memorandum prepared by Parent and the Company pursuant to the DGCL and the Securities Act of 1933, as amended.
“Owned Real Property” has the meaning specified in Section 3.09(a).
“Parent” has the meaning specified in the first paragraph of this Agreement.
“Parent ASE Filing” has the meaning specified in Section 4.07.
“Parent Basket” has the meaning specified in Section 11.02(c).
“Parent Indemnitees” has the meaning specified in Section 11.02(a).
“Parent Losses” has the meaning specified in Section 11.02(a).
“Parent Material Adverse Effect” means a material adverse effect on the business, operations or financial condition of the business of the Parent and its Subsidiaries taken as a whole, provided, however, that none of the following (individually or in combination) shall be deemed to constitute, or shall be taken into account in determining whether there has been, a Parent Material Adverse Effect: (a) any change or effect relating to the Australian or international economy in general changes or developments in Parent’s industry generally; or (b) any adverse effect resulting directly or indirectly from the announcement, execution or delivery of the Agreement or the pendency or consummation of the Merger.
“Parent Share Consideration” has the meaning specified in Section 2.01(c)(iii)
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“Parent Shares” has the meaning specified in Section 2.01(c).
“Permitted Liens” has the meaning specified in Section 3.09(a).
“Person” means any individual, Entity or Governmental Authority.
“Representatives” has the meaning specified in the first paragraph of this Agreement.
“Second Milestone” means the date of submission to the FDA (or the Medicines & Healthcare Products Regulatory Authority in the United Kingdom or the European Medicines Evaluation Authority) by the Parent or any Affiliate of the first NDA in respect of the Specified Technology.
“Secretary of State” has the meaning specified in Section 1.02.
“Series A Preferred Stock” has the meaning specified in Section 2.01(c)(ii).
“Series B Preferred Stock” has the meaning specified in Section 2.01(c)(ii).
“Series C Preferred Stock” has the meaning specified in Section 2.01(c)(ii).
“Series D Preferred Stock” has the meaning specified in Section 2.01(c)(iii).
“Series E Preferred Stock” has the meaning specified in Section 2.01(c)(iii).
“Shareholder Basket” has the meaning specified in Section 11.02(c).
“Shareholder Indemnitee” has the meaning specified in Section 11.02(b).
“Shareholder Losses” has the meaning specified in Section 11.02(b).
“Specified Regulatory Filings” means the regulatory applications and governmental registrations identified on Schedule 3.16.
“Specified Technology” means polyamine analogues, xxxxxxxx and porphyrins.
“Stockholders” means the holders of Company Common Stock, Preferred Stock and Senior Preferred Stock on the Closing Date.
“Sub” has the meaning specified in the first paragraph of this Agreement.
“Sub Common Stock” has the meaning specified in Section 2.01(a).
“Subsidiary” has the meaning specified in Section 2.01(b).
“Subsidiary Security” means (i) shares of capital stock or voting securities of a Subsidiary of a Company, (ii) securities of a Subsidiary of the Company convertible into or exchangeable for shares of capital stock or voting securities of such Subsidiary, or (iii) options or
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other rights to acquire from a Subsidiary of the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of such Subsidiary.
“Survival Period” has the meaning specified in Section 11.01.
“Surviving Corporation” has the meaning specified in Section 1.01.
“Surviving Corporation Common Stock” has the meaning specified in Section 2.01(a).
“Taxes” has the meaning specified in Section 3.15(a).
“Tax Claim” has the meaning specified in Section 7.04(d).
“Tax Returns” has the meaning specified in Section 3.15(a).
“Third Milestone” means the initiation of a second Phase II clinical trial relating to or involving the Specified Technology (initiation being the date upon which the first human subject is enrolled into an FDA approved protocol for a clinical trial that is designed to provide Phase II dose, safety and efficacy data for the Specified Technology).
“Third Party Claim” has the meaning specified in Section 11.02(e).
“Thirty-Day Average Stock Price” means the volume weighted average of the closing sale prices of a share of Parent Shares as reported on the Australian Securities Exchange for the period of thirty consecutive trading days ending on the trading day immediately preceding the achievement of a Milestone.
“Transfer Taxes” has the meaning specified in Section 7.04(c).
“2007 Balance Sheet” has the meaning specified in Section 3.07.
ARTICLE XI
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committing or alleged to have committed such fraud, the right of each party hereto to assert indemnification claims and receive indemnification payments pursuant to Section 11.02 shall be the sole and exclusive right and remedy exercisable by such party with respect to any breach by the other party hereto of any representation, warranty or covenant in this Agreement, except that, in the event of any breach or threatened breach by any party to this Agreement of any covenant or obligation set forth in this Agreement for the benefit of any other party to this Agreement, such other party shall be entitled to seek a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and an injunction restraining such breach or threatened breach.
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before and ends after the Closing Date shall be taken into account as though the relevant Tax period ended on the Closing Date. All determinations necessary to give effect to the foregoing allocations shall be made in a manner consistent with prior practice of the Company.
(b) The Parent shall defend, indemnify and hold harmless the Stockholders of the Company entitled to consideration pursuant to this Agreement (the “Shareholder Indemnitees”) from, against and in respect of any and all Losses that the Shareholder Indemnitees may incur, sustain, or suffer as a result of (i) subject to the expiration of the Survival Period, any breach of or inaccuracy in any representation or warranty of the Parent contained in this Agreement or in the Parent Disclosure Letter furnished by or on behalf of the Parent under this Agreement, (ii) any breach of the covenants or agreements of the Parent contained in this Agreement (collectively, the “Shareholder Losses”). No claim for recovery of any Shareholder Losses under Section 11.02(b)(i) may be asserted by any Shareholder Indemnitee after the expiration of the applicable Survival Period; provided, however, that claims in writing made by the Shareholder Indemnitee in good faith and with reasonable specificity prior to the expiration of the applicable Survival Period shall not thereafter be barred by the expiration of the applicable Survival Period.
(c) Except with respect to any Parent Losses involving proven fraud by the Company, the Stockholders shall not be liable to Parent with respect to Parent Losses arising out of breaches of representations or warranties unless and until, and then only to the extent that, the aggregate amount of all Parent Losses shall exceed the sum of US$15,000 or equivalent (the “Parent Basket”). The Company shall thereafter be liable for all Parent Losses, whether or not in excess of the Parent Basket; provided, however, that the Parent Indemnitees shall not be entitled to aggregate indemnification under Section 11.02(a) in excess of the aggregate value of the Holdback Shares; provided, further, however, the parties to this Agreement agree that the Parent shall deduct from any consideration owing pursuant to Section 2.01 (the Holdback Shares) prior to the issuance or payment of such consideration, any indemnification amounts claimed under Section 11.02(a) and that such deductions from the consideration owing pursuant to Section 2.01 (the Holdback Shares) shall be the sole and exclusive source of any indemnification amounts payable to Parent pursuant to this Agreement and except as provided in the first sentence hereof, no Stockholder of the Company shall be personally liable for any indemnification except to the extent of having such Stockholder’s consideration owing pursuant to this Agreement reduced by such indemnification amounts.
(d) Except with respect to any Shareholder Losses involving proven fraud by the Parent, the Parent shall not be liable to the Shareholder Indemnitees with respect to Shareholder Losses arising out of breaches of representations and warranties unless or until, and then only to the extent that, that aggregate amount of Shareholder Losses shall exceed the sum of US$15,000 or equivalent (the “Shareholder Basket”). Parent shall thereafter be liable for all Shareholder Losses whether or not in excess of the Shareholder Basket; provided, however, that the Shareholder Indemnitees shall not be entitled to aggregate indemnification under Section 11.02(b)(i) in excess of US$300,000; provided, that such limitation shall not apply to any Shareholder Losses that result because of Parent’s breach of the covenants and agreements contained in Section 2.01, 2.02 or 6.03.
(e) All claims for indemnification by the Parent Indemnitees, the Surviving Corporation or the Shareholder Indemnitee (in such capacity an “Indemnified Party”) against,
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respectively, the Stockholders or the Parent (in such capacity, an “Indemnifying Party”) relating to a Third Party Claim (as defined below) shall be asserted and resolved as set forth in this Section:
(i) In the event that any written claim or demand for which an Indemnifying Party would be liable to an Indemnified Party is made against or sought to be collected from any Indemnified Party by a third party, promptly after the assertion of any such claim or demand (a “Third Party Claim”), the Indemnified Party shall notify the Indemnifying Party of such Third Party Claim; provided, however, that the failure promptly to give such notice shall not affect any Indemnified Party’s rights hereunder except to the extent that such failure shall adversely affect any Indemnifying Party or its rights hereunder. The Indemnified Party shall advise the Indemnifying Party of all facts relating to such assertion within the knowledge of the Indemnified Party, and shall afford the Indemnifying Party the opportunity, at the Indemnifying Party’s sole cost and expense, to participate in the defense thereof and, if it so chooses, to assume the defense of such claims and to settle or compromise any Third Party Claim; provided, that, except with the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed, no Indemnifying Party in the defense of any such claim shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement to the extent that it provides for injunctive or other non-monetary relief against the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of such Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for legal expenses incurred by the Indemnified Party in connection with the defense thereof, except as specifically provided below. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof, it being understood that the Indemnifying Party shall control such defense, and in any such action or proceeding. the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense unless (x) the Indemnifying Party and the Indemnified Party mutually agree to the retention of such counsel or (y) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the opinion of recognized outside counsel to the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would result in a conflict of interests between them. Where the Shareholder Indemnitees are the Indemnifying or Indemnified Party hereunder,, the Parent shall in any event be liable for the fees and expenses of a single counsel for all such parties.
(ii) The Indemnified Party shall not, without the prior written consent of the Indemnifying Party, have the right to settle or compromise any Third Party Claim subject to indemnification under this Section and be indemnified therefor.
(iii) An Indemnifying Party shall not be liable under this Section for any settlement effected without its prior written consent of any Third Party Claim for which indemnity may be sought hereunder, which consent shall not be unreasonably withheld. The Indemnifying Party may settle any Third Party Claim without the consent of the Indemnified Party provided that such settlement or release constitutes monetary damages
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only that are paid in full by the Indemnifying Party. Each party shall cooperate in the defense or prosecution of any Third Party Claim. Such cooperation shall include the retention and, upon the request of the party defending such claim, the provision to such defending party or records and information which are reasonably relevant to such claim and making of employees available on a mutually convenient basis to provide additional information and explanation of any matters relating to such claim.
Notwithstanding any other provision of this Agreement, with respect to the obligation to indemnify for any Tax, (i) if an Indemnified Party is requested to pay the Tax and xxx for a refund, the Indemnifying Party or Indemnifying Parties shall advance the full amount of the Tax to the Indemnified Party on an interest free basis; (ii) no Indemnifying Party shall be entitled to settle or to contest in court any claim relating to Taxes if the settlement or an adverse court decision of the claim would be likely, in the good faith judgment of the Indemnified Party, to cause the Tax liability of the Indemnified Party or any affiliate to increase in any taxable period ending after the Closing Date; and (iii) no proceedings may be begun in any court unless the Indemnifying Party or Indemnifying Parties, if requested by the Indemnified Party, provides a counsel’s opinion reasonably satisfactory to the Indemnified Party that a reasonable basis exists to prevail in those proceedings.
(f) Any claim or demand relating to any matter for which a party is entitled to indemnification hereunder shall be asserted by written notice to the other party or parties from which indemnification is sought, which notice shall specify in reasonable detail, insofar as such facts are known to the party asserting such claim or demand, the facts and circumstances giving rise to such claim on demand. Any amounts paid under this Article XI will be treated as an adjustment to the aggregate consideration paid to the holders of Company Common Stock, Preferred Stock and Senior Preferred Stock.
(g) Notwithstanding anything in this Agreement to the contrary, all amounts determined to be owing to Parent Indemnitees for indemnification obligations of each of the Stockholders pursuant to this Section 11.02 shall be payable solely by offset from the Holdback Shares at the conclusion of the procedures specified in this Section 11.02 (to the extent that the same have not been released to the relevant Stockholder). In the event Parent is entitled to offset against the Holdback Shares, the number of Holdback Shares payable under Section 6.03, as the case may be, that shall be canceled and no longer deliverable to each of the respective Stockholders shall equal each such Stockholder’s proportional Share of Parent Losses divided by the fair market value of the Holdback Shares with the fair market value of the Holdback Shares being determined based on the Exchange Rate on the date of set-off and application. On the six (6) month anniversary of the Closing Date, Parent will transfer to the Stockholders entitled thereto (as informed by the Representative), (i) fifty percent (50%) of the Holdback Shares (to the extent remaining after the resolution of any claims with respect to Parent Losses) minus (ii) the number of Holdback Shares equal to the aggregate amount of claims by Parent pending on such date divided by the fair market value of the Holdback Shares (determined using the Exchange Rate on the date of determination). On the twelve (12) month anniversary of the Closing Date, Parent will transfer to each of the Stockholders entitled thereto (as informed by the Representative), (i) the remaining Holdback Shares of such Stockholder (to the extent remaining after the resolution of any claims with respect to Parent Losses and transfer pursuant to the prior sentence) minus (ii) the number of Holdback Shares equal to the aggregate amount of claims by
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Parent pending on such date divided by the fair market value of the Holdback Shares (determined based on the Exchange Rate on the date of determination)). With respect to any pending claims referred to in the preceding two sentences, promptly following resolution of any such claims, the Holdback Shares, if any, which have not been offset by Parent in connection with such resolution, and which would have been offset by Parent if the claim had been resolved prior to the date set forth in the applicable sentence of this Section 11.02(g), will be transferred to the Stockholders ratably in accordance with the Ordinary Shares issuable to each Stockholder.
If to Parent or Sub, to:
00 Xxxxxx Xx, Xxxxxxx
Xxxxxxxxxx 0000 Xxxxxxxxx
Facsimile No.: x00.0.0000.0000
Attention: Xxxxxx Xxxxx
with a copy to:
Xxxxxxxxx Traurig, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxx, Esq.
If to the Company, to:
0 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
XXX
Facsimile No.: x0.000.000.0000
Attention: Xxxxxx X. Xxxxxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
XXX
Facsimile No.: x0.000.000.0000
Attention: Xxxx X. Xxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered personally to the address as provided in this Section, be deemed given upon delivery, (ii) if delivered by facsimile
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transmission to the facsimile number as provided in this Section, be deemed given upon receipt, and (iii) if delivered by air courier in the manner described above to the address as provided in this Section, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered pursuant to this Section). Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other parties hereto.
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11.11. Governing Law. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to a contract executed and performed in such State without giving effect to the conflicts of laws principles thereof. Each of the parties irrevocably consents to the non-exclusive jurisdiction and venue of the state and federal courts located within Santa Xxxxx County, California and of Queensland, Australia, in connection with any matter based upon or arising out of this Agreement or the transactions contemplated hereby and agrees that process may be served upon it in any manner authorized by the laws of the State of California or Australia, as the case may be, for such persons and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction and such process.
(b) EACH OF THE PARTIES HERETO HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(c) Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
(Signature Page Follows)
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PROGEN PHARMACEUTICALS LIMITED |
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PROGEN PHARMACEUTICALS, INC. |
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CELLGATE, INC. |
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REPRESENTATIVE |
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SPROUT CAPITAL IX, L.P. |
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By: DLJ Capital Corporation |
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Its: Managing General Partner |
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Name: Xxxxxxxx X. XxXxxxx |
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Its: Managing Director |
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